Phoenix Cop Sues Department To Block Investigation Of Officers' Questionable Social Media Posts
from the sometimes-good-things-happen-to-bad-people dept
Free speech doesn't mean speech free of consequences. A person can be fired for saying things their employer doesn't agree with or feels reflects badly on it Things get a little more complicated when the employer is the government, but the end result of the added complexity is generally that government employees have fewer protections for their speech, rather than more. That's a direct side effect of being employed by the government, which gives employees the power to control private citizens' lives through laws, policies, and regulations.
A Phoenix cop, whose bigoted social media posts were swept up in the Plain View Project's database, is unhappy that his questionable posts have resulted in him possibly suffering from the consequences of his actions. Sergeant Juan Hernandez of the Phoenix PD believes he shouldn't be disciplined for his posts, which included sharing anti-Muslim content on multiple occasions. Meg O'Connor of the Phoenix New Times has more details.
"The most common name for a convicted gang rapist in England is... Muhammed," reads a Facebook post once shared by Phoenix Police Sergeant Juan Hernandez.
The post was one of 11 made by Hernandez that ended up being published this past June as part of a database of bigoted Facebook posts made by police officers nationwide.
[...]
Hernandez has shared numerous anti-Muslim memes on Facebook, including posts from conspiracy websites titled "The End of the Christians in the Muslim World" and "Young Christian Girl Repeatedly Raped by 15 Muslims Then Murdered [READ HERE]."
Sergeant Hernandez doesn't want to be punished by his employer for these posts. In fact, he doesn't even want to be investigated. His lawsuit [PDF] has been filed mid-investigation in hopes of receiving an injunction blocking him -- and other police officers -- from being investigated for their social media posts. It's somewhat of a class action complaint as well, with Hernandez attempting to sue on behalf of all other members of his union (Arizona Conference of Police and Sheriffs).
Hernandez alleges the investigation is improper and suggests (probably correctly) the only reason he's being investigated is because of the Plainview Project's database.
Despite the fact that the Facebook posts were online for years, prior to the Plain View Project publication, no one from the Phoenix Police Department or the City of Phoenix ever identified Plaintiff Hernandez’s postings as alleged violations of any PPD or Phoenix policy.
If he's correct, it says more about the Phoenix PD's inability or unwillingness to keep tabs on its officers' social media posts than it does about the alleged impropriety of the investigation. Like many other law enforcement agencies around the nation, the Phoenix PD appears to have been caught off guard by its officers' online behavior. This doesn't necessarily make the investigation improper. It just makes it extremely belated.
As the lawsuit notes, the PD claims the posts "brought discredit" to the agency and it was for this reason -- not the PD's social media policy -- that it was seeking to punish him. Hernandez claims he's been an exemplary officer -- something backed up by the PD's inability to specify any other time where he failed to be a good cop.
Defendant Disotell and other PSB personnel present at the investigative review process meeting were unable to provide any examples of any situations in which Plaintiff Hernandez acted without “moral integrity” or failed to “work cooperatively, courteously, but firmly with all segments of the public” (quotations from the discipline investigation) other than the Facebook posts that were the focus of the investigation.
This is another failure by the Phoenix PD. Meg O' Connor of the New Times appears to know more about Sergeant Hernandez than the PD's investigators.
As Phoenix New Times previously reported, Hernandez was added to the Maricopa County Attorney's Brady list back in 2004 (the Brady list is a list of police officers who are so notoriously unreliable and dishonest that prosecutors must disclose the officer's reputation to defense lawyers).
Hernandez claims the PD's social media policy is impermissibly vague. It may be, but it does appear to clearly state that officers will be held responsible for any speech the department considers improper.
When using social media, Department personnel should be mindful their speech becomes part of the worldwide electronic domain. Therefore, adherence to City and Department policies is required in the personal use of social media. Employees are prohibited from using social media in a manner that would cause embarrassment to or discredit the Department in any way.
"Embarrassment" is an incredibly vague term, one that could be used to punish critics and whistleblowers, as well as cops who engage in hateful speech. This part is a bit more specific, but still remains pretty vague.
Department personnel are free to express themselves as private citizens on social media sites to the degree that their speech does not impair working relationships of this Department, are detrimental to the mission and functions of the Department, that undermine respect or public confidence in the Department, cause embarrassment to the Department or City, discredit the Department or City, or undermine the goals and mission of the Department or City.
The policies are problematic. And Sergeant Hernandez -- Brady list member and incautious social media user -- may ultimately prevail. He's asking for a restraining order preventing the Phoenix PD from continuing its investigations of officers found in the Plain View Project's database. He has a good chance of securing this.
While free speech protections are more narrow for public employees, they're not completely erased. A bigoted cop's Facebook posts are protected speech. Even with the social media policy applied, they're likely still protected from the department's attempt to punish him. Vague wording generally tends to result in findings of unconstitutionality, and a policy that would similarly prevent good cops from criticizing government agencies and policies won't hold up under judicial scrutiny.
This doesn't mean cops should be allowed to harm the department's relationship with the public by engaging in hateful behavior online. It just means the department will have to be far more specific about what sort of online behavior it won't tolerate. Matters of public concern are pretty much off limits, and the Phoenix PD might have a hard time convincing the court Hernandez's posts weren't at least somewhat related to topics of national debate like immigration and international terrorism.
I don't like to defend bad cops but I'm far more averse to policies that threaten free speech protections. The public can draw its own conclusions about Sergeant Hernandez's character from the content he chooses to share. But can he be punished or fired for it? That's not nearly as certain. If the Phoenix PD doesn't want to be the employer of bigots, perhaps it should start firing cops when they're deemed too untrustworthy to testify in court, rather than offer up an internally-incoherent response to a negative news cycle.
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Filed Under: free speech, investigation, juan hernandez, phoenix, phoenix police department, police, social media
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Actions speak louder than words. Employment shouldn't depend on off hours speech, rather it should depend on job performance. Sure could be a lot of speech curtailed otherwise.
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To an extent sure, however if someone who works a government job where a gun and large leeway to use it is standard equipment happens to be a bigot I'd say that's a rather important detail well worth considering, because that could all too easily(and with significant potential consequences) lead to some rather unpleasant interactions with the public.
If someone is willing to be openly bigoted on social media for anyone to see odds are pretty good they are not going to maintain a professional attitude should they encounter a member from that group, and given the power and authority that police have that's not a minor concern.
As for 'on job performance'? If they actually applied that standard, and actually cared about who they were employing, he'd have been fired well over a decade ago.
As Phoenix New Times previously reported, Hernandez was added to the Maricopa County Attorney's Brady list back in 2004 (the Brady list is a list of police officers who are so notoriously unreliable and dishonest that prosecutors must disclose the officer's reputation to defense lawyers).
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And when that happens, you can punish/fire that person. Punish the conduct, not the speech.
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And when that happens, you can punish/fire that person. Punish the conduct, not the speech.
Barring a department policy that very clearly defines bigotry as unacceptable in government employees that regularly interact with the public sure, given that 'we employ openly bigoted people' is hardly conductive to a good relationship with the public(well, the portions of the public that aren't terrible people anyway...), firing would probably be excessive.
That said, as the last two paragraphs in my comment note if they were at all interesting in punishing officers for their conduct they'd have fired him over a decade ago.
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The problem is, again, that cops have guns. If/when things go sideways with a member of that group, it could very easily end up with an innocent person dead. It's better, for everyone, if such a cop isn't placed in that situation to begin with.
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Agreed. The speech reveals the attitude. Cops with a bad attitude need to go.
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Oh, that'll be fun. So who gets to decide what is acceptable speech for everyone, and how do you legally define a "bad attitude"?
Can I have that job?
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How do you define a "bad attitude"?
How about starting by weeding out the college football jocks, the ones who make off-color jokes about women, racial minorities, and have a spoken obsession with shooting unarmed civilians?
Trying to paint instilling common decency as some sort of undefinable anti-fun regimen is pretty fucking lowbrow.
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And when that happens, you can punish/fire that person. Punish the conduct, not the speech.
And when I actually see something like that happen, I'd be happy to consider it as a solution.
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A racist or bigoted cop is a lawsuit in the making.
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Listen to those shredders
Could it be that PSB, along with other law enforcement agencies, has sequestered all of their disciplinary files to a round bin with a burn sign over it? He made the Brady list:
Yet they know nothing about it? Very Sargent Shultz of them.
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'Really, what cop doesn't habitually lie? Our are the same.'
There really is no good excuse for that contradiction that I can think of, just varying degrees of bad.
Either they have absolutely abysmal memory and didn't actually bother checking, or, rather more worrying both in it's implications and that it's likely to be more accurate, the actions that got him put on a list for notoriously unreliable and dishonest cops weren't actually considered worthy of note by the department at the time, and therefore they don't have any records of them.
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I love it in the age of every government g man with his nose snooping around every back window and up every skirt that all these companies and school administrations think they can probe private media accounts for employees and students private lives for dirt and skin or whatever. Its incredible that they can get away with it.
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I'm not sure how any employer is supposed to 'keep tabs' on its employees' social media posts in the first place. Are they supposed to be proactively searching Facebook, YouTube, Google, Twitter, and even Usenet for any posts made by people with the same names as their employees? And considering most platforms don't require a real name to begin with, that seems like an insurmountable task.
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Are they supposed to be proactively searching Facebook, YouTube, Google, Twitter, and even Usenet for any posts made by people with the same names as their employees? And considering most platforms don't require a real name to begin with, that seems like an insurmountable task.
How about just having awareness that this dicktard was on the Brady list? Surely they could at least proactively search that. And it's reasonable to think it would require a real name.
I mean, i can give them a pass about social media. But at what point do you just call them fucking incompetent?
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A most telling lawsuit
While the policies may be vague enough in their current form that punishment for violations of them isn't considered acceptable by a court, the fact that he is suing to stop an investigation into his apparently openly bigoted posts, and managed to get enough support to turn it into a class action lawsuit, says just so much about him and other police in that area, none of it good.
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So cops believe social media should be a part of any investigations they conduct, unless it is their social media accounts?
They must really hate that the information was obtained without a search warrant.
Bout time they reap what they sow.
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It's weird to see an author here suggesting that employers should be keeping tabs on the social media posts of their employees.
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When the employees in question can legally kill other people, I'd be asking myself if maybe those employees' social media histories could prove they're trying to pick their victims.
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So you'd be fine with all employers requiring access to their employees' personal social media accounts as a condition of employment then? You understand that we can't just pass labor laws that apply only to people we don't like, yeah?
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We can not all be law enforcement officers now can we?
I doubt your employer has much at all to do with whether you become a person of interest due to offensive and/or threatening posts in the internet or elsewhere. Just because you work a minimum wage thankless job does not mean you get to hide from the man.
The problem here seems to be that the law enforcement arm of the government does not want to investigate itself. This seems to be both ubiquitous and systemic.
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All employers? No. I don't think it's terribly relevant to the job if the person who picks up my garbage is racist.
A cop, however? Yeah, it might matter just a bit if the cop is harassing or shooting people because they're a color the cop doesn't like, and reviewing social media might help reveal such a thing.
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So to become a cop, you have to surrender your right to privacy. I'm sure the unions will agree to that.
And since police departments are government agencies I'm sure there's no 1st Amendment problems with them constantly monitoring the private speech of their employees, right?
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It looks like they already have to some degree.
http://www.seattle.gov/police-manual/title-5---employee-conduct/5125---social-media
There's also https://www.tennessean.com/story/news/local/2016/08/15/police-walk-fine-line-facebook-other-social-m edia/87940492/ that talks about restrictions on speech in multiple department policies in Tennessee.
Please point out where I stated that an officer's social media should be constantly monitored.
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What does "keeping tabs on" mean then, if not active monitoring? That's what you are arguing in favor of here. How could a police department keep tabs on social media activity in a passive way? If they're not actively watching it, they're not keeping tabs on it.
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I wasn't responding to your "keeping tabs" comment. I was responding to this:
But now to respond to the "keeping tabs" comment: No, nobody's speech should be constantly monitored. In the case of law enforcement, I'd imagine a review of personal social media posts would occur in two circumstances: during a background investigation as part of the hiring process, and when a policy-violating post is brought to the department's attention.
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Did you miss the section of the article that mentions how the speech limiting policies are "problematic" and constitutionally dubious?
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The Tennessean article? No, I didn't miss that. While I was doing my research, I also found a blog article pointing to a case where a PD's social media policy limiting speech was found to be unconstitutionally overbroad.
While a person may be within their rights to make offensive Facebook posts, do you not see why people might not want that person to be a police officer? That a job like that might have a legitimate interest in the content of a person's character?
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Certainly, but my desire for bad people to not be police officers doesn't justify violating the rights and intruding into the personal lives of ALL police officers.
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Fair point. I don't think we should be doing that either. I think it's reasonable to check someone out when they apply for the job, and I think it's reasonable to check someone out when an issue is discovered. I don't think the PD should be Facebook-stalking its officers.
From the original article:
Yeah... you're right. I hope Tim just mis-stated. The PD should be unwilling to "keep tabs" in the manner implied.
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You might have had a point if this was the time before the good officers didn't routinely shield the bad ones from any meaningful penalties, and before the police regularly trotted out the line "If you have nothing to hide, you have nothing to fear."
The police chose to squander their goodwill while complaining that things like encryption and privacy make it harder to do their job.
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If you're seriously using what about-isms and bringing up the totally unrelated behavior of other people, you've missed the point entirely, and you have no understanding of the implications of what we are even discussing.
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Here's something you might not have realized. Like it or not, people make assumptions about you. Often that's because of prior experience, or reliant on information on other people you might be associated with.
Cops do this all the time which is why we get the travesty of how traffic stops are handled, where all non-suspicious behavior is treated as suspicious.
I get that if cops were monitored all the time it would suck for them in the same way it would suck for normal civilians.
At the same time, they've already put their own reputation into the shitter so often, squeezing a modicum of sympathy for that would frankly give me a slipped disc from the effort required.
Besides, any cop knows that all you need to bypass such investigations is to apply their protocol for their body cameras: make sure they conveniently fail...
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Yeah, it's funny how we think police departments shouldn't hire complete dirtbags.
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How does suggesting an employer should be actively monitoring the personal social media accounts of employees have anything to do with whether or not police departments should hire dirtbags?
Are you saying that employers should have access to and review the social media history of every job applicant they get, as well as all of their current employees? And if they don't do that, they're somehow negligent?
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I'm saying the police should be held to higher standards.
Once those posts become brought to the attention of the department, as these were, they become a valid public concern.
But hey, if the cops can do no wrong then nothing to see here.
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Yes, they should do something AFTER posts are brought to the attention of the department. But that is a far, far different thing from pro-actively monitoring the social media activity of an employee, even if they are a police officer, as Tim is saying they should have been doing already.
Everyone has a right to privacy. It disgusts me how quickly you would discard the basic human rights of someone just because of their chosen profession. Think one step past your own bigotry to think of the consequences for everyone.
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The problem is that the police are, by default, in a position to perpetrate a wide swathe of abuses. They are empowered to enforce law. They are empowered to employ lethal force. A cop is part of one of the only classes of people that can gun someone down in broad daylight and it be considered entirely legal.
There's a tradeoff, or there needs to be, for that power. Greater scrutiny is, and should be, one of those things. What you say in public as someone who is supposed to uphold the law is one of those things that, yes, needs to be taken into account. It may not need to lead to immediate firing, but if you have a police officer posting racist and bigoted things, someone should take steps to make sure they don't get the chance to act on those racist and bigoted viewpoints in the course of their duties.
And, it should be noted, these are publicly viewable posts. These aren't private off-hours communications. This is the guy stepping into the town square and shouting to the world.
Yeah, I want my police folks to keep an eye out for this behavior. Absolutely.
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Every police department should have its own official censor, got it. Nothing wrong with a government agency constantly watching people online and causing a chilling effect on their protected speech if it's just LEO's, right? They're just cops, they don't deserve the same basic rights as us honest folks. /s
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Sure they do. Cops deserve to have no immunity from shooting someone naked, unarmed and fleeing, just like the rest of us.
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"Are you saying that employers should have access to and review the social media history of every job applicant they get, as well as all of their current employees?"
Are you claiming they presently do not do this?
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Not really. Were you not around when there was that huge uproar over companies demanding access to their employees' Facebook accounts?
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Not the same thing. The uproar was over companies demanding username and password to personal social media accounts, not over companies being able to look at them.
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But the purpose is the same, unreasonable intrusion into the personal life of an employee. I wouldn't be okay with my employer watching everything I post or respond to on social media that is publicly accessible, and I'm not okay with it being done to other people either.
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Do you believe there can be reasonable intrusion into the personal life of an employee?
If you aren't ok with everybody (including your employer) seeing it, then why is it publicly accessible?
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I wouldn't be okay with my employer watching everything I post or respond to on social media that is publicly accessible
That's nice, you should choose an employer who doesn't do that. But this case is not about whether someone can view your public statements...by definition, everyone can view your public statements. We can't, after all, pass laws prohibiting only people you don't like from listening to you talk (or pass laws preventing everyone from listening to you talk, for that matter).
This case is only about whether the government, acting as an employer, can make employment decisions based on the public actions of its (potential) employees. The only reason that the answer might be no, is that the government is bound by the first amendment, which has lots of things to say about different types of speech and the purposes for which the government may act against that speech.
Ironically, it is the same first amendment that would likely prevent the government from prohibiting others from acting against speech. It would be difficult to argue that there is a strong enough government interest in this area to eliminate free association, particularly considering how damaging it would be to the more "controversial" organizations who actually need those protections. Planned parenthood, for example.
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You've made the point better than I could have. I'm staggered that a community that usually champions free speech seems to be so eager to strip it away.
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You haven't been paying enough attention.
Cheers all-around when someone they don't like is booted from a platform. Far cry from free speech champions.
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Public employees should be held to a higher standard than everyone else. They're given special treatment, some of them are given weapons and a badge and all of them are paid for by the public. It's also well known that public figures are subject to greater scrutiny than private citizens. That includes their off-the-job (publicly viewable) social media posts.
So yeah, these employers should scrutinize all aspects of the lives of their employees.
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What other professional exceptions should we start carving out?
Doctors and nurses have peoples' lives in their hands every day, to a much greater and more personal a degree than police, does that mean their lives should now be open to total scrutiny as well to ensure they're giving the best care possible to all of their patients? How about pharmacists? Do we invade their lives also? EMT's? Courthouse employees? Judges? Public Defenders? The District Attorney?
Who should be looking at all of their social media posts? Who will be in charge of this moral watchdog that you all are championing? Who will be doing the scrutinizing, and who will be scrutinizing them?
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"How does suggesting an employer should be actively monitoring the personal social media accounts of employees have anything to do with whether or not police departments should hire dirtbags?"
Just a guess, but I assume "police departments making sure their newest hires aren't bigots who might use their newfound power to be a bigot with a gun and qualified immunity" justifies that line of thinking. Cops are given broad power to commit state-sanctioned violence. We should be holding them to a higher standard than we do for the John Q. Asshole who works at a gas station.
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Are you saying that employers should have access to and review the social media history of every job applicant they get, as well as all of their current employees? And if they don't do that, they're somehow negligent?
No. Not when "employers" is being taken to mean "all employers."
When it comes to employers whose employees are authorized to enforce law, and are authorized to employ lethal force, yes.
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No. We are not discarding the 1st Amendment and creating a special set of rules that apply only to a class of people based solely on the job they choose to do. It is wrong on so many levels, and once you give the government that power it will certainly be abused.
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No. We are not discarding the 1st Amendment and creating a special set of rules that apply only to a class of people based solely on the job they choose to do and the power and authority that that job comes with.
Choose to work a cash register and you aren't given a gun and wide leeway to use it.
Choose to be a firefighter and you aren't allowed to arrest people on questionable grounds and maybe get a slap on the wrist afterwards.
Choose to be a cabbie and you aren't allowed to pull people over because you think their driving is 'off'.
Stop dishonestly pretending that police aren't given extensive power and authority well above and beyond what almost any other job(outside of military service very few have a gun as standard gear) involves, power and authority that makes holding them to a higher standard than other jobs a fair tradeoff.
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^This, although FB-stalking for bad attitudes might result in non-conformist attitudes being taken into account. We live in a world where concern for the public is seen as a leftist position.
It can't be that big a stretch to imagine a decent cop who cares about the environment complaining about toxic emissions being passed over for promotion because he or she is seen as being a bit of a lefty.
Be very, very careful what you wish for: if you give out power, be aware of who might wield it.
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I'm not pretending anything, it's a non-issue. The power of police is completely irrelevant to whether they have the same basic rights that I do. We are people, citizens of the United States of America, and we are ALL protected by the Constitution and the 1st Amendment. It is not against the law to be a bigot. It is not a crime to be a bigoted police officer. YOU don't get to demand that anyone give up their rights, for any reason whatsoever. Our rights are inalienable, they are not yours to even ask for. You especially don't get to take away the rights of a group of people for Thought Crimes. Do I have to make it any simpler for you, fascist?
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Do I have to make it any simpler for you, fascist?
Ooh, so close! You almost had me going for a moment there, Hamilton, but a leopard can never change its spots.
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Come on guy, at least create an anonymous sh*t account to troll from.
Says the Anonymous Coward, .... (looks at feet) .....
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